Here’s the story: Odysseus, who is known as Odysseus the Cunning (or Ulysses for you Latin scholars) is trying to get home to his beloved wife Penelope. It’s taking him twenty years, but as you know, he’s so cunning he won’t ask for directions. So we pick up the story when Odysseus has to navigate his ship through the narrow passageway between the sea monster Scylla and the giant whirlpool Charybdis. To avoid one is to encounter the other. If he backed away from Charybdis, the giant sea monster Scylla would swallow his ship. And vice versa.
Why am I telling you this story?
What if the sea monsters that Odysseus faced represent two different ways to decide child custody cases? Let me make Scylla the current legal rule, that parenting determinations are case-by-case decisions based upon the standard known as “the best interest of the child.” This standard is often nominally filtered through a laundry list of factors, ten or twelve or so, depending on the state, but here’s the truth: the statutes almost never prioritize these factors, and only a particularly clumsy judge will ever get reversed. Why is this version of Scylla a monster? Because, if the standard for custody decisions is that loose, it encourages damaging litigation since the result is so unpredictable.